Secret international government surveillance? Not our problem, says SCOTUS

March 4, 2013

The Supreme Court in WashingtonLast week, the Supreme Court ruled in Clapper v. Amnesty International, a challenge to the broad new surveillance powers given to the U.S. government by a 2008 law.

The law is an amendment to the 1978 Foreign Intelligence Surveillance Act (FISA), and allows the federal government (the Attorney General and the Director of National Intelligence, specifically) “to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not ‘United States persons’ and are reasonably believed to be located outside the United States.”

The law’s challengers consist of a group of attorneys with clients who have faced or are facing terrorism charges, a group of journalists, and a human rights organization (Amnesty International).  The common element with all of these challengers is that they claim that they engage in sensitive international communications with individuals who they believe are likely targets of the 2008 amendment (FISA Amendments Act, or “FISAAA”).

So did the Court decide that this surveillance was constitutional or unconstitutional?

Actually, SCOTUS essentially ruled that it wasn’t their problem.

In a 5-4 decision, the Supreme Court held that the challengers did not have standing in the case because the alleged injuries suffered by the challengers were too remote.

The majority, written by Justice Alito and joined by Chief Justice Roberts and Justices Scalia, Thomas, and Kennedy, created a new definition for “certainly impending,” a standard used to determine whether an injury-in-fact – required to establish standing – has been established.

The phrase “certainly impending” originally appeared in the 1923 case Pennsylvania v. West Virginia in the following context: “One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough [emphasis added].”

The phrase, as used in Pennsylvania, did not deal with a party’s standing in federal court; it dealt with situations under which an injunction could be issued.

“Certainly impending” is next found in 1979’s Babbitt v. United Farm Workers Nat. Union, and this time, it actually was used in the context of standing in federal court.  However, it was immediately preceded by the following:

“A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.”

Moreover, in 1990’s Whitmore v. Arkansas the phrase once again appeared in the context of standing.  In that case, though, the Court held the alleged injury must be “actual or imminent, not conjectural or hypothetical.”

What’s my point?

The Clapper majority held that “certainly impending” means that the impending injury must be a certainty.  This holding contrasts sharply with the other referenced instances that “certainly impending” is used in Supreme Court jurisprudence.

Unfortunately for FISAAA’s challengers, this standard is also exceedingly high, and, particularly in a situation where the alleged surveillance activities by the government earn the highest levels of secrecy, nearly impossible to meet.

Does the Clapper majority suggest that the challengers are just out of luck?

Yes and no: the majority’s interpretation of “certainly impending” makes a successful challenge in federal court virtually unachievable without actual evidence of harm or “certain” harm; yet, the majority also seems to attempt to offer some (rather odd) comfort to the challengers (and anyone else making international communications).

Namely, the majority states that since these surveillance requests must be cleared by the Foreign Intelligence Surveillance Court (FISC) before they can actually proceed, and that FISC must act in “compliance with the Fourth Amendment,” things should be okay.

Considering the highly secretive nature of FISC, and the fact that the tribunal has rarely denied such requests, I doubt that anyone concerned about government surveillance will find much relief through that court.

So it seems that, if you really do not want to have your international communications monitored by the U.S. government, it’s best to just refrain from making such communications altogether.

After all, Clapper has shown us that such questions cannot effectively be resolved by the federal courts.